Williams v. Citizens Mutual Insurance Co. of America

94 Mich. App. 762 (1980) 290 N.W.2d 76

WILLIAMS
v.
CITIZENS MUTUAL INSURANCE COMPANY OF AMERICA

Docket No. 44142.

Michigan Court of Appeals.

Decided January 9, 1980.

Best, Arnold, Gleeson & Best, P.C. (by Robert P. Ladd), for plaintiff.

Rosenburg, Stanton, Bullen & Nelson, P.C., for defendant.

Before: R.M. MAHER, P.J., and MacKENZIE and J.H. PIERCEY,^[*] JJ.

PER CURIAM.

Plaintiff Leola Williams appeals as of right from a February 23, 1979, order of the Jackson County Circuit Court granting defendant's motion for summary judgment pursuant to GCR 1963, 117.2(3).

On October 1, 1978, plaintiff's daughter, Monica Faye Williams, was a passenger in a car involved in an accident and suffered injuries resulting in her death. The automobile in which she was riding was insured by a no-fault automobile policy issued by defendant Citizens Mutual Insurance Company of America. At the time of the accident, plaintiff did not own a vehicle which was insured, nor was there any co-domiciled relative who owned such a vehicle. Prior to the time of the accident, Monica Faye Williams had been residing with plaintiff at her home in Jackson, Michigan.

Plaintiff made demand for reimbursement of her lost wages and costs of psychiatric care which she was forced to undergo upon her daughter's death. When defendant denied liability, suit was filed in Jackson County Circuit Court seeking recovery of the lost wages and costs of psychiatric care.

The lower court held that defendant was not liable because plaintiff was not personally involved in the use, operation, or maintenance of the motor vehicle which gave rise to plaintiff's daughter's death. The court further noted that there was no analogous tort recovery since plaintiff did not see the accident occur or view a body within minutes of the accident.

We agree with the trial court's ruling. According to MCL 500.3105(1); MSA 24.13105(1):

"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle."

Plaintiff's injury did not arise out of the "ownership, operation, maintenance or use of a motor vehicle". Rather, her injury arose out of the death of her daughter which in turn arose out of the operation of a motor vehicle.

We note that the term "arising out of" does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979). As a general rule, the injury must be foreseeably identifiable with the normal use of the vehicle. O'Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979), Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975).

In the instant case, we find the causal relationship between the auto accident and plaintiff's injury sufficiently remote to warrant denial of liability. We take into consideration the fact that there is no analogous tort recovery available to plaintiff. In Michigan, a plaintiff may recover for mental disturbance resulting in physical harm when an immediate family member is injured or exposed to injury by a negligent tortfeasor if the plaintiff is present at the time of the accident or peril or the shock is fairly contemporaneous with it. The plaintiff, however, cannot recover when he is informed of the matter at a later date. See Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976), Perlmutter v Whitney, 60 Mich App 268; 230 NW2d 390 (1975). In affirming the lower court's decision, we do not reach the issue of whether plaintiff would have a right to recovery under the no-fault act had she witnessed the accident or became aware of it at a time fairly contemporaneous with it.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.